Affirmative consent: the ultimate romance-killer

Last week, New York governor Andrew Cuomo signed into law a bill designed to combat sexual violence on college campuses. The law requires both public and private colleges in New York State to adopt new policies and protocols that demand explicit, affirmative consent before students or staff members partake in any remotely sexual activity. Similar to the ‘yes means yes’ law in California, this affirmative-consent law is severely stacked in support of the alleged victim, who merely needs to make a complaint, and in opposition to the accused, who needs to produce proof of consent – a case of guilty until proven innocent.

Cuomo’s intentions may be noble, but his execution is rash. This extreme legislation is possibly a result of Cuomo’s naive acceptance of the debunked statistic claiming one-in-four women falls victim to sexual violence while in college. Sexual assault does happen on campus, but there is no reliable data to suggest that as many as one-in-four women is being assaulted. Sexual assault is wrong, but so is legislation that undermines due process.

Not all states have affirmative-consent or ‘yes means yes’ laws. But many colleges outside of California and New York are increasingly keen on implementing them. The University of Minnesota, for example, is considering introducing affirmative-consent protocols in September. Many universities are also working with a ‘yes means yes’ advocacy group, which distributes consent kits. Each kit includes consent contracts, condoms and a pen.

Under affirmative-consent laws you are putting yourself at risk if you do not follow consent protocol. So it is now up to the accused to provide proof of clear consent through words or actions – and, without a witness, that is nearly impossible to do.

The intoxication level of an individual can also affect the validity of consent. Based on this new definition of consent, students should also whip out a breathalyser along with a consent form before having sex. So much for romantic spontaneity.

It seems that lawmakers are ignorant of modern romance and the hook-up culture prevalent today. After all, flirting and active participation in an initiated hook-up are generally assumed to be forms of consent. In the majority of cases, this assumption is correct. Participants in hook-up culture have a shared language and mutual understanding of hints, cues and flirtation. Even outside of hook-up culture, explicit verbal or written consent is awkward at best. When on a date, for example, asking to kiss someone can show a lack of confidence. Most of us prefer actions based on unspoken understanding and romantic spontaneity, which is why they make for the most beautiful moments in movies.

The impromptu kiss between Owen and Claire in Jurassic World left women swooning and men hoping to emulate Owen. The scene in Harry Potter and the Half Blood Prince where Ginny asks Harry to close his eyes before softly kissing him does not bring to mind the word ‘assault’. And in The Notebook, Noah grabbing and kissing Allie in the pouring rain after being reunited is incredibly romantic, despite his use of force. In all these films, there was no explicit consent, no breathalyser, no contract – not even a request for permission.

Although the above examples are fictional, many people will have experienced something similar. The moment when your hands slide together, or when you are saying goodnight after a date and your mouths lock without uttering a single word. Such moments can be unbelievably romantic. Or they can be unbelievably embarrassing and awkward. Sometimes people misread the moment, and try to kiss someone who doesn’t want to be kissed. Some people are simply bad with social cues. Misreading a situation and feeling embarrassed and apologetic afterwards is an honest and forgivable mistake. That is, unless you’re in California or New York, where misreading the desires of another would be seen as sexual assault. Whether the outcome of attempting a kiss is romantic or humiliating, you better pray the person you’re going for is not someone who would ruin your life over it.

To take it a step further, the New York and California affirmative-consent laws assert that ‘consent must be ongoing throughout a sexual activity’. This concept has been portrayed in short films such as Feminism For Bros – 105. The actors hooking up in this short speak throughout the entire sexual encounter, ensuring every touch, every kiss, every movement is acceptable. The whole scenario strikes me as awkward, forced and unappealing.

Affirmative-consent laws are not explicitly created to control and restrict sexual activity, but to stop sexual abuse on campuses. However, Cuomo and the universities implementing these laws are not considering the effect they could have on the falsely accused and those who have a poor understanding of social cues and informal etiquette. Campus kangaroo courts are already giving rise to miscarriages of justice. These laws will only make things worse.

Good intentions or not, the way these laws have been formulated could very well have disastrous results. Innocent individuals could be accused of terrible crimes and be kicked out of college. Lives could be ruined before they’ve even really got going.

Lauren Southern is a reporter for the Rebel and a political-science student at the University of the Fraser Valley.